7 Mont. 407 | Mont. | 1888
The defendant has appealed from an order of the district court of Deer Lodge County
The only grounds relied upon for a reversal are alleged errors in the charge of the court. Instruction No. 9 is the first one to which exception is taken. It is as follows, to wit: “ If the jury find from the evidence, beyond a reasonable doubt, that the defendant killed the deceased, Matilda Scott, and killed her unlawfully, then they should next determine whether or not such killing was murder. The second essential requisite to constitute the crime of murder is, that the killing should have been done with malice aforethought. Malice is thus defined: ‘ Express malice is that deliberate intention unlawfully to take away the life of a fellow-being which is manifested by external circumstances capable of proof. Malice may be presumed to exist where no considerable provocation appears, or where all the circumstances show an abandoned and malignant heart. Threats and previous difficulties are evidence tending to prove malice.’ ” The only criticism made upon the instruction
Chief Justice Parker, in the celebrated case of Commonwealth v. Selfridge, Horr. & T. Cas. 19, correctly states the rule as follows, to wit: “ I hold the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I interfere with my opinion on the testimony, in order to influence yonr minds to incline either way, I should certainly step out of the province of a judge into that of an advocate. All which I conceive necessary and proper for one to do in this part of the cause is, to call your attention to the points of fact on which the cause may turn, state the prominent testimony in the case which may tend to establish or disprove these points, give you some rules by which you are to weigh the testimony, if a contrariety should have occurred, and leave you to
While it is true that the judge cannot assume the existence of a disputed fact in issue, yet where the evidence is clear and conclusive as to the existence of the particular fact, and there is no evidence to the contrary, or where facts are admitted, an instruction assuming such facts as true will not work a reversal of the judgment; but if there is the least conflict in the evidence, or if the evidence is in any wise of a doubtful character, such ruling will be held erroneous. Caldwell v. Stephens, 57 Mo. 589-595; Barr v. Armstrong, 56 Mo. 577-588. In the absence of the testimony, we are unable to say whether there was any controversy as to the existence of threats and previous difficulties, or not. We will not presume that the charge is erroneous; but the party seeking to avail himself of errors in the charge must furnish in the record the proofs of such errors.
Instruction No. 11 is the next one to which exception is taken. It is as follows, to wit: “ If the jury find from the evidence beyond a reasonable doubt that the defendant killed Matilda Scott, and killed her unlawfully, and also with malice aforethought, they must find him guilty of murder, and should then determine whether or not such murder is murder in the first degree or murder in the second degree.” It is insisted that this is erroneous, for the reason that it authorizes the jury to find the defendant guilty of murder in the first degree upon the definition of murder alone in the second degree. It is difficult to understand how this instruction could mislead the jury into finding the prisoner guilty of murder in the first degree upon a definition of murder in the second degree. The court only says to them, in effect, that when the killing is done unlawfully, and with malice aforethought, it would be murder, and that they
When these instructions are all taken together, it presents a clear and accurate definition of murder as it exists at common law, and draws the destinctions clearly between murder in the first degree and murder in the second degree. The jury are told that they must designate by their verdict whether it be murder in the first or second degree. They are also told that if the killing be done unlawfully and with malice aforethought it will be murder, and they are also told what murder in the first degree is, and what murder in the second degree is; and certainly no jury can be found that would fail to understand what their duty was when taking all these instructions together. They are instructed that all the elements of malice aforethought, willfulness, deliberation, and premeditation must concur, in order to constitute murder in the first degree. They are further told that if they found the killing was done unlawfully, and with malice aforethought, either express or implied, and the killing is not done deliberately and with some degree of coolness, or in one of the ways specified in the definition of murder in the first degree, that it would be murder in the second degree. With all this explicit instruction before them, it could' not be possible that they could be misled in finding the prisoner guilty of murder in the first degree, under the common-law definition of murder, or the definition of murder in the second degree. The failure to. designate the kind of malice (instruction 11), whether it was express or implied, is immaterial. This had previously been done in instruction 3, and the definition correctly given ■ in instruction 9, so that the jury had the whole law upon the subject of malice before them. If the killing was done unlawfully, and with malice aforethought, it would
The charge to the jury is remarkable for its clearness, fullness, and accuracy. The prisoner is carefully given the benefit of every possible legal right; and indeed, we -agree with the counsel of the prisoner when he says in his brief: “The transcript in this case presents a record exceptionally free from errors, considering the gravity of the offense alleged against the defendant, and of which he stands convicted.” The judgment of the court below is therefore affirmed.
Judgment affirmed.